City of Owensboro v. Westinghouse, Church, Kerr & Co.

Citations

• 165 F. 385
• 91 C.C.A. 335
• 1908 U.S. App. LEXIS 4764

Syllabus

<p>1. Judgment (§ 704*) — Conclusiveness of Adjudication — Persons Concluded — Codefendants.</p> <p>Where joint defendants appeared by different attorneys, made separate answers and defenses, and separate judgments wore rendered as to each, there being no cross-pleadings or issues between them, neither a judgment against the one nor in favor of the other in said action created any estoppel as between them which affected a subsequent action by the one against which judgment was rendered to recover the amount of the same from the other as primarily liable therefor.</p> <p>[Ed. Note. — For other cases, see Judgment, Cent. Dig. § 3229; Dec. Dig. § 701.*]</p> <p>2. Compromise and Settlement (§ 31*) — Construction of Agreement.</p> <p>An agreement between a city and a contractor for constructing an elee1 rio light plant for the city, who wore joint defendants in an action for damages alleged to have resulted from the negligent construction or operation of such plant, recited that it was for the purpose of compromising and settling all matters of difference between the parties, among which was the question which, if either, was ultimately liable for such damages, and provided that in case of a judgment against the city it might maintain an action over against the contractor, but. that if required by the contractor it should appeal from such judgment and should not have llie right to sue the contractor unless the same should be affirmed. Held, that the effect of such agreement was not merely to authorize the city to sue the contractor, which right it already had, but that when fairly construed it acknowledged the liability of the company for any judgment which should be finally recovered against the city.</p> <p>[Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. § 51; Dec. Dig. § ll.*j</p> <p>3. Action (§ 27*) — Nature and Form — Contract or Tort.</p> <p>Defendant contracted to construct an electric light plant for plaintiff city ‘‘in a workmanlike, saf